Wednesday
Jan032018

Worksite Immigration Enforcement Law (“Sanctuary State” Law)

This law adds various new sections to the Government and Labor Codes which impose significant restrictions and requirements upon employers in connection with federal immigration law enforcement. 

Employers may be liable for prescribed civil penalties, up to $10,000 per violation.

Unless federal law requires otherwise, Government Code sections 7285.1 and 7285.2 prohibit an employer or other person acting on the employer’s behalf from providing voluntary consent to an immigration enforcement agent to either (i) enter a nonpublic area of business, unless the agent provides a judicial warrant, or (ii) access or review of the employer’s employee records without a subpoena (which may be issued by a court or administrative agency officials) or judicial warrant.  

The prohibition does not apply to I-9 Employment Eligibility Verification forms and other documents for which a notice of inspection has been provided to the employer. The law specifies that nothing in these provisions is intended to restrict or limit an employer’s compliance with E-Verify requirements. 

Labor Code section 1019.2 prohibits an employer from reverifying the employment eligibility of a current employee at a time or in a manner not required by specified federal law. This could impact when and how companies perform immigration law compliance audits, respond to reports or suspicions of unauthorized workers, and correct individual employee forms.

 

Wednesday
Jan032018

Parental Leave for Small Employers

The New Parent Leave Act (Govt. Code § 12945.6) will require businesses with 20 or more employees to provide eligible employees up to 12 weeks of unpaid, job protected leave to bond with a new child within one year of the child’s birth, adoption or foster care placement.

Wednesday
Jan032018

"Ban the Box" Now Applies to all Employers with Five or More Employees

Several years ago, California passed a “ban the box” law that was limited to state agencies, cities and counties. Effective January 1, 2018, California extended the “ban the box” law to private employers with five or more employees. The new addition to the California Fair Employment and Housing Law is codified at Government Code section 12952. 

Section 12952 also requires a multi-step process for requesting and considering an applicant’s criminal conviction history, only after a conditional job offer is made. 

            1.         What Can Be Considered, and When: Employment applications cannot include any questions that would disclose an applicant’s conviction history prior to a conditional offer of employment.  Similarly, employers cannot inquire into or consider the conviction history of an applicant before making a conditional offer of employment.  Certain information, such as specified arrests not resulting in conviction, referral to diversion programs, and sealed convictions, cannot be considered, distributed or disseminated at all. 

            2.         Individualized Assessment: If the employer intends to deny an applicant a position based solely or in part on the applicant’s conviction history, the employer must make an individualized assessment, based on factors set forth in Government Code Section 12952, of whether the applicant’s conviction history has a direct and adverse relationship with specific duties of the position that justify denying the applicant the position. The employer may, but is not required to, commit the results of this individualized assessment to writing. 

            3.         Preliminary Decision Notification to Applicant: The employer must then notify the applicant in writing of its preliminary decision, including attaching a copy of the conviction history report, identifying the conviction(s) being used as the basis of the preliminary decision to rescind the offer, and providing the applicant with a detailed explanation of his or her right to respond to the notice before it becomes final and the deadline to do so, which must be at least five business days out. The notification may, but is not required to, outline the employer’s justification. 

            4.         The Applicant’s Response: If the applicant timely informs the employer that he or she disputes the accuracy of the conviction history report and is taking specific steps to obtain evidence to support this assertion, the applicant will have an additional five business days to respond to the notice. 

            5.         Consideration of Evidence Submitted by the Applicant: The employer must consider the information submitted by the applicant disputing the accuracy of the conviction history report before making a final decision. 

            6.         Notification of Final Decision: If the employer makes a final determination to deny the applicant the position, the employer must notify the applicant in writing of the final denial, any procedures the employer has for the applicant to challenge the decision or request reconsideration, and the applicant’s right to file a complaint with the Department of Fair Employment and Housing. The employer may, but is not required to, explain its reasoning for the denial.

Friday
Mar032017

Writings on Personal Devices/Personal Accounts not Categorically Exempt from the California Public Records Act

    Holding. 

            The California supreme court holds that “when a city employee uses a personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the California Public Records Act.”  Recognizing that, “in today’s environment, not all employment-related activity occurs during a conventional workday, or in an employer-maintained workplace,” the court rejected the City’s claim that such writings be categorically exempt from disclosure.  Instead, and considering the balance between a public employee’s right of personal privacy and the public’s right of access, public employees’ “communications about official agency business may be subject to the CPRA regardless of the type of account used in their preparation or transmission.”  “A city employee’s writings about public business are not excluded from CPRA simply because they have been sent, received, or stored in a personal account.” 

            Public Record Act Analysis. 

            1.         Writing.  The writings in question included e-mails and text messages concerning redevelopment efforts in downtown San Jose sent or received in private electronic devices through personal accounts by the mayor, two city council members and their staffs.  Contrasting what was necessary to create, deliver and store a writing in 1968 when the CPRA was adopted with the “ease and immediacy of electronic communication” 50 years later, “it is undisputed that the items at issue here constitute writings.”  (Gov. Code 6252(g).) 

            2.         Relating to the Conduct of the Public’s Business.  In a significant portion of the opinion, and noting that determining “whether a writing is sufficiently related to public business will not always be clear,” the court set forth this test: “to qualify as a public record under CPRA, at a minimum, a writing must relate in some substantive way to the conduct of the public’s business.”  This is important because older (circa 1970) language construing the CPRA had very narrowly defined personal conversations as those “totally void of reference to governmental activities.”  The court explained that “an email to a spouse complaining “my coworker is an idiot” would not likely be a public record.”  Such an email indeed would not appear to be a public record.  However, it is not “totally void” of the public entity. 

            3.         Prepared by Any State or Local Agency.  The definition of a public record requires that writings be “prepared, owned, used, or retained by any state or local agency.”  The key here is that this definition includes any writing “prepared by” any local governmental officials or staff. 

            4.         Owned, Used, or Retained by Any State or Local Agency.  The City argued that the writings in question were not within the possession of the City.  Again, the court disagreed, explaining that “a writing retained by a public employee conducting agency business has been “retained by” the agency...even if the writing is retained in the employee’s personal account.” 

            Policy Considerations. 

            As stated above, the competing interests are the public’s right of access with the individual’s privacy rights.  The City argued that the privacy rights required that the writings in question be categorically exempt from disclosure.  The Court disagreed for two reasons.  First, privacy concerns may be addressed in the “case-specific application of CRPA’s exemptions, not in defining the overall scope of a public record.” 

            Second, a categorical exemption “would allow evasion of CPRA simply by the use of a private account...and would encourage government officials to conduct the public’s business in private.” 

            Guidance for Conducting Searches. 

            While the issue as to the scope of a search of the records in question was not before it, the court offered “some guidance about how to strike the balance between privacy and disclosure.” 

            1.         Employees Conducting Searches of Their Accounts. 

            If a request for records on an employee’s personal account was made, the court indicated that “the agency may...reasonably rely of these employees to search their own personal files, accounts, and devices for responsive material...segregating public records from personal record, so long as the employees have been properly trained in how to distinguish between the two.”  

            An employee who withholds a writing identified by the employee as potentially responsive would then prepare an affidavit “with sufficient factual basis upon which to determine whether contested items were agency records or personal materials.” 

            2.         Adoption of Policies. 

            The court noted that “agencies can adopt policies that will reduce the likelihood of public records being held in personal accounts,” explaining that “agencies are in the best position to implement policies that fulfil their obligations under the public records law yet also preserve the privacy rights of their employees.”  

            “For example, agencies might require that employees use or copy their government accounts for all communications touching on public business.”  The agency may also prohibit use of personal electronic accounts for official business unless messages are copied or forwarded to an official account. 

San Jose v. Superior Court, March 2, 2017. 

Friday
Feb242017

No Exception to the Coming and Going Rule

The Fourth Appellate District affirmed a judgment, holding that plaintiffs failed to show that a company that organized training exercises on remote military bases was vicariously liable for a car accident caused by a civilian temporary employee driving home from such an exercise.

Brian Lynn was killed and wife Gail Lynn seriously injured in a car accident caused by Abdul Formoli, a temporary employee of Tatitlek Support Services, Inc. (TSSI). Formoli was one of hundreds of “role players” in a military training exercise conducted by TSSI at the U.S. Marine Corps military base at Twentynine Palms. Formoli’s assignment lasted three and a half days, during which time he remained on base, worked long hours, and got little sleep. When the exercise ended, Formoli used his personal car to drive himself home to Sacramento. The car accident occurred en route. Gail and her son filed a wrongful death action against TSSI, alleging that Formoli was acting within the scope of his employment when the accident occurred.

Noting the remoteness of the jobsite, Formoli’s long hours over the three and a half day exercise, and his lengthy commute home, plaintiffs argued the extraordinary-commute incidental benefit exception, the compensated travel-time exception, and the special risk exception all barred application of the “going and coming” rule, which would otherwise preclude employer vicarious liability. The trial court disagreed and granted summary judgment in favor of TSSI. 

The court of appeal affirmed, holding that plaintiffs failed to show that any of the cited exceptions to the going and coming rule applied. As to the incidental benefit exception, the court acknowledged that Formoli had a long commute, but found no evidence that Formoli’s use of his personal vehicle was a condition of his employment. To the contrary, it was undisputed that TSSI offered round-trip bus transportation, at no charge, to participants traveling from Northern California and other locations. Participants were not required to use their own transportation, and those who opted to do so were not compensated for their time or travel expenses. On this record, neither the incidental benefit exception nor the compensated travel-time exception applied. Further, in the absence of evidence showing that Formoli was in fact exhausted and sleep-deprived when he left the base, as plaintiffs alleged, the special risk exception also did not apply.

Lynn v. Tattitlek Support Services, Inc., 4th DCA, February 23, 2017.